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Madhya Pradesh High Court · body

2007 DIGILAW 967 (MP)

Take Singh v. Kalyan Singh

2007-09-05

A.M.SAPRE, S.R.WAGHMARE

body2007
JUDGMENT Sapre, J. -- 1. This is an appeal, filed by the claimants under section 173 of Motor Vehicle Act (for short-hereinafter referred to as 'the Act') against an award dated 13.2.2006 passed by 13th MACT, Indore in Claim Case No. 72/2005. By impugned award, the Claims Tribunal has dismissed the claim petition of claimants filed under section 166 of the Act seeking compensation for the death of one lady Lilabai. So the question that arises for consideration in this appeal is whether Claims Tribunal was justified in dismissing the claim petition filed by claimants? 2. Facts in brief are these. 3. It is the case of claimants (appellants herein) that on 20.8.2004 at about 7 a.m., one Amar Singh was going on his Motor bike with his Bhabhi (brother's wife) -- Lilabai who was pillion rider on the motor bike on Ujjain-Indore road when non-applicant No.1 (R-1) came from behind on his motor bike bearing number MP-13-JA-213 and dashed the motor bike of Amar Singh. As a result of dash, Lilabai who was pillion rider on the motor bike of Amar Singh fell down on the road and suffered head injuries. She (Lilabai) later succumbed to injuries. It is this incident, which gave rise to filing of claim petition by claimant (appellant herein) who is the husband of deceased Lilabai under section 166 of the Act before the Claims Tribunal out of which this appeal arises, against the driver/owner of offending vehicle (MP-13-JA-213) and its Insurer. It was inter alia alleged in the claim petition that accident in question that resulted in death of Lilabai occurred solely due to rash and negligent driving of R-1/NA-l who came from behind and dashed to the vehicle (Scooter) of Amar Singh. It was alleged that since on the date of accident, the offending vehicle was insured with R-2/NA-2 and hence the Insurance Company is also jointly and severally liable to indemnify the risk of R-l/N -1 arising out the insurance coverage granted against the third parties. It was alleged that deceased was 33 years of age and was healthy house wife. In all, the claimant being the sole surviving legal representative of deceased claimed a sum of Rs. 10 lakh by way of compensation for the death of Lilabai. 4. The R-1/NA-l remained ex-parte despite service since inception whereas Insurer (R-2/NA-2) alone contested the claim petition. It was alleged that deceased was 33 years of age and was healthy house wife. In all, the claimant being the sole surviving legal representative of deceased claimed a sum of Rs. 10 lakh by way of compensation for the death of Lilabai. 4. The R-1/NA-l remained ex-parte despite service since inception whereas Insurer (R-2/NA-2) alone contested the claim petition. In substance, the R-2/NA-2 denied the very existence of accident including its manner in which it claimed to have occurred by the claimants. In consequence, thus, the R-2/NA-2 denied their liability. Parties adduced the evidence. Claimant examined 2 witnesses. 5. The learned member of the Claims Tribunal by impugned award, dismissed the claim petition. It was held (Issue No. 1/2) that claimant failed to prove that Lilabai died due to rash and negligent driving of R-1/NA -1. In other words, the Tribunal on appreciation of evidence adduced by the claimant held that death of Lilabai did not occur due to rash and negligent driving of R-l/NA-1 with his offending vehicle. As a consequence of this finding returned on material Issues No. 1 and 2, the Tribunal dismissed the claim petition and declined to award any compensation to the claimant. It is against this award of dismissal which is impugned by the claimant in this appeal filed under section 173 of the Act. 6. Heard Shri Atul Jaiswal, Advocate for appellant and Shri H.C. Jindal, Advocate for respondent No.2 and none for respondent No. 1 though served. 7. Learned counsel for the appellant (claimant) while assailing the legality and correctness of the reasoning which led to dismissal of his claim petition contended that Tribunal erred in dismissing the claim petition. It was his submission that if the evidence brought on record is properly appreciated then it be safely concluded in claimant's favour that accident in question did occur on account of sheer negligent driving of R-l/NA-l as a result of which Lilabai died on 20.8.2004. Learned counsel further contended that claimant should be awarded reasonable compensation for the death of Lilabai. In reply, learned counsel for company (R-2) supported the impugned award and prayed for dismissal of appeal. 8. Having heard the learned counsel for the parties and having perused the record of the case, we find no merit in this appeal. As a consequence thereof, the appeal is liable to be dismissed resulting in upholding of the impugned award. In reply, learned counsel for company (R-2) supported the impugned award and prayed for dismissal of appeal. 8. Having heard the learned counsel for the parties and having perused the record of the case, we find no merit in this appeal. As a consequence thereof, the appeal is liable to be dismissed resulting in upholding of the impugned award. We have gone through the evidence adduced by the claimant. It is a settled rule of law that this being a claim petition filed by the claimant under section 166 of the Act, it is obligatory on the part of the claimant to plead and prove by adducing adequate evidence that accident in question occurred due to rash and negligent driving of the R -l/NA -1 which resulted in death of Lilabai. In other words, the entire burden lay on the claimant to prove this fact. Indeed in order to claim compensation either for death or bodily injuries to any third person, it is necessary to prove the act of negligence on the part of driver of offending vehicle, if the claim petition is filed under section 166 ibid. In the absence of any evidence to prove the accident and consequent negligence involving vehicle, the claim petition has to fail. 9. Having gone through the evidence, we have formed an opinion that Tribunal was right in its conclusion. The claimant has examined Amar Singh as PW 2. Perusal of his evidence clearly shows that he is not a reliable witness and hence cannot be believed for his so called version relating to accident which he has given in his evidence. In the first place, why did he not lodge immediate FIR of the incident in the nearest police station after the accident occurred? Secondly, when he was in a position to lodge FIR of the incident as he did not claim to have received any injuries and when he could even notice the person (R-11) who dashed his scooter which resulted in causing injuries to Lilabai then in normal circumstances, Amar Singh should have first lodged FIR in the nearest police station against R-l/NA-l immediately after the incident. In our view, the very fact that no FIR was lodged by Amar Singh at all goes long way to show thai accident did not occur in the manner in which it is alleged in the claim petition. In our view, the very fact that no FIR was lodged by Amar Singh at all goes long way to show thai accident did not occur in the manner in which it is alleged in the claim petition. Thirdly, lodging of belated FIR on 1.10.2004 (Ex. P-l/Ex. P-2) i.e. almost after about 2 months and that too by one Mr. Malviya, itself shows doubt on the credibility of the version of the claimant. Fourthly, why FIR was lodged in October 2004 when the accident occurred in August 04? Fifthly, delay in FIR with no justification is fatal to the claim petition. Sixthly, the very fact that Amar Singh who claimed to be driving the scooter did not sustain any injuries whereas pillion rider travelling on the same scooter died due to suffering of serious injuries seems something unnatural. Seventhly, in a case where scooter is dashed by other vehicle coming from rear, there is every possibility that the driver of scooter would also fall down on the Road from his scooter and in such situation, he is also likely to suffer some injuries (Minor) if not major. The very fact that Amar Singh never claimed to have sustained any injuries goes to show that no accident in the manner suggested by claimant took place. Eighthly, the very fact that R-l /NA-l remained ex-parte and did not contest the case shows that there was some kind of collusion between the claimant and R -1 for claiming compensation else in normal circumstances, the R-l/NA-l would have contested the case by denying the allegations of negligent driving alleged against him and would have tried to prove that either he was not involved in the accident at all or was not negligent in driving of his scooter. The case of collusion becomes more apparent to us because it has come in evidence of PW 1/2 that both i.e. claimant and R-l were friends and living in the same locality as neighbours. It, therefore, clearly appears to us that a false story was set up by claimant that R-1 while driving his scooter dashed to Amar Singh's vehicle so that claimant is able to claim compensation from the Insurer of R-l scooter. It is also for the reason that if claimant had not implicated R-l/ 2, then claimant was not in a position to claim any compensation from his own Insurer of Scooter. It is also for the reason that if claimant had not implicated R-l/ 2, then claimant was not in a position to claim any compensation from his own Insurer of Scooter. This seems to be the reason for setting up of a false claim against R-1/2. 10. In our considered view, the evidence brought on record by the claimant do not discharge the burden of proving the involvement of scooter belong to R-l in the accident which led to Lilabai's death. In our view the Tribunal rightly disbelieved the oral testimony of PW 2 Amar Singh and we on our own appraisal of evidence also concur with the same. In the absence of any other independent evidence much less eye witness to the incident, we find no good ground to reverse the finding of the Tribunal. 11. In order to claim compensation under section 166 of the Act what is material for the claimant to prove is not the death or injury alone but the cause and manner in which the death/injury has occurred with the involvement of vehicle and that too on account of negligence of one who is being sued for claiming compensation. Every death is unfortunate but that is no ground to grant compensation unless the requisite as provided I under section 166 of the Act are proved. As observed supra, since in this case claimant has failed to prove these ingredients and hence his claim petition was rightly dismissed by Claims Tribunal. We uphold the view and the conclusion of the Claims Tribunal. 12. Accordingly and in view of foregoing discussion the appeal fails and is dismissed.